8th Circuit finds for UPS in disability-discrimination case in en banc rehearing

A former UPS driver who claimed he was unfairly denied an eight-hour work day has lost his disability-discrimination case against the company after a decision by the 8th U.S. Circuit Court of Appeals. The en banc court voted 6-3 to reverse a panel decision and restore summary judgment to UPS. The appellate court held that the ability to work overtime was an essential function of the UPS package-driver job and that UPS did not violate federal or state law by refusing the plaintiff’s request for an eight-hour day because that accommodation would have made him unable to perform an essential function of the job. The appellate court also found that the plaintiff’s eight-hour restriction applied to other jobs, so the employer did not fail to reasonably accommodate him by not offering him a “feeder-driver” job since it also required up to nine-and-a-half hours of work per day. The 8th Circuit also agreed that UPS participated in the interactive process prescribed in its ADA compliance manual and worked with the plaintiff to find a full-time job.“After the May 2013 meeting, when full-time positions [the driver] could have performed with his lifting restrictions were not available, UPS told him it would notify him if any position became available and again offered him a part-time job that he rejected. Given these extensive efforts, we agree with the district court that a reasonable jury could not find that UPS acted in bad faith,” Judge James B. Loken wrote for the court. Jerry Lee Faidley began working as a delivery driver for UPS in 1987. He suffered multiple back injuries and a hip replacement that required ongoing physical restrictions, so he requested disability accommodations under the ADA and state law, specifically a shorter work day or a less physically demanding position. A UPS committee decided that Faidley could not be accommodated in his current package-car driver position because its essential function included being able to work overtime hours. The committee discussed a “feeder-driver” job, which would require him to drive a tractor-trailer truck between locations for eight-hour days but would not require as much lifting, walking or climbing. This job was determined to be unavailable. Faidley was not reassigned to an alternative full-time job because such jobs were not available or he lacked seniority. He declined a part-time job offer but returned to work in February 2013 for a short time, eventually retiring in November 2013. He filed a first disability-discrimination action in January 2013 and a second in February 2014 to which he added an unlawful-retaliation claim. The district court granted summary judgment in favor of UPS. On appeal, a panel of the 8th Circuit reversed and remanded, finding that the district court erred in granting summary judgment to UPS because Faidley could work as a feeder driver and that such positions could open in the future. Judge Diana E. Murphy issued a decision concurring in part and dissenting in part. She was joined by Chief Judge Lavenski R. Smith and Judge Jane Kelly. Murphy agreed that Faidley was unqualified for the package-car driver job and that he did not show that UPS failed to make a good-faith effort in helping to accommodate him. But Murphy thought the district court erred by determining as a matter of law that Faidley was unable to perform the essential functions of the feeder-driver position. Murphy referred to notes from a human resources manager that stated Faidley appeared to be capable of performing the essential functions of the feeder job while acknowledging the eight-hour restriction on the same form.“I believe that this is sufficient to create a genuine issue of material fact on Faidley’s claim that he was qualified to perform the essential functions of the feeder driver position. For this reason, I would reverse and remand Faidley’s discrimination claim to the district court,” Murphy wrote.“Nothing is more important to UPS than the safety and well-being of our people. UPS is pleased that the court has vindicated the company’s accommodation processes and actions,” UPS spokesperson Matthew O’Connor said in an emailed statement. Mark D Sherinian of Des Moines, Iowa, argued for Faidley. Jeffery Thomas McPherson of St Louis argued for UPS. Neither was available for comment. The case is Faidley v. United Parcel Service of America, Inc. 16-1073

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